I might have commented on Ed Fallone’s post regarding the role of logic in Supreme Court decisions, but there is nothing in the post with which I disagree. But I do think that it raises two additional issues, one of which has been the subject of much recent popular conversation.
President Obama’s stated preference for judges with “empathy” has been a jumping-off point for a variety of conservative versus liberal debates on constitutional interpretation. Folks who tend to think like I do on these matters have roundly criticized the President for suggesting that judges ought to abandon the rule of law in favor of preferred results.
But the real debate, in my view, is not about whether empathy is a desirable quality in people and judges, but what role empathy ought to play in, to borrow from Ed, seeking “the logical consequence of undisputed first principles, the overall structure of the document, and prior interpretations.”
It seems to me that, while empathy may not be the most important quality in such an enterprise and emphasizing it presents certain risks to the rule of law, it is not wholly irrelevant. For instance, in applying the Fourteenth Amendment’s guarantee of equal protection, a certain degree of empathy with the position of African-Americans facing a legal regime of “seperate but equal” may be relevant.
Nevertheless, I think the President’s emphasis on empathy is problematic. The first concern is that, as presented, the empathy that he called for seemed to be ideologically slanted, singling out those dispossessed groups that the progressive political tradition has historically regarded as uniquely disfavored and as needing special protection from and intervention by the state.
But, more fundamentally, it calls into question adherence to Ed’s formulation of what constitutes legitimate consitutional decision-making. If empathy is defined as a concern for a particular result in the matter at hand, the logical application of first principles, structure, and prior decisions is threatened. If empathy is defined as one tool in the interpretive process, the devil is in the details, and it is here that we arrive at what I think is the second point raised by Ed’s post.
Much of the disagreement in constitutional interpretation has to do with how one discerns first principles and constitutional structure. An unfair caricature of the “conservative/restraintist” view, recently indulged by the formerly conservative Doug Kmiec, is that public meaning “virtually delivers itself like the morning paper.” I know of almost no one who believes that. An unfair caricature of the “liberal/activist view” is that it can be anything. I know of almost no one who believes that.
But, as unfair as these caricatures may be, they do suggest something about the difference of opinion between those who advocate more or less restrained interpretive philosophies, and that difference itself bears upon the role of “empathy” in judicial decisionmaking. The more elastic these first principles are thought to be or the more discretion is recognized in the ways in which they are discerned, the greater will be the role of empathy and the political and policy choices that are necessary to translate empathy into action.